Translator: Law clerk, District of Massachusetts. Translator’s note: The Bortz case links a series of truly comparative moments.
In the first, the unsuspecting foreigner crosses into another culture’s blind spot, and
emerges a very different person. Ana Bortz was shopping for a necklace in a Japanese
jewelry store when the owner asked her where she was from. A westerner in Japan,
Bortz likely thought little of the question, having answered it many times. She answered
first in Japanese, and then in English, “from Brazil.” Neither response pleased the
storeowner. Foreigners, or perhaps just Brazilians, were not allowed in the store.
Their ensuing argument revealed other comparative moments. Enraged by
unapologetic discrimination and unsympathetic police, Bortz did what many westerners
would: she threatened to sue. For the storeowner, Suzuki Takahisa, the threat seemed
hyperbolic, or perhaps just odd. One does not sue over such things in Japan. But Bortz
made good on her threat; she hired a lawyer, filed her claim, and eventually won damages
of 1.5 million yen ($12,500) from the Suzuki family. The Japanese racial discrimination
lawsuit was born.
To be sure, other foreigners—Koreans, Chinese, Taiwanese, Filipinos—have
experienced racism in Japan. But racism operates differently between the races.
Phenotypically, Asian people experience subtler, perhaps more deeply-rooted, forms of
discrimination in Japan. Resident Koreans, many of whom have lived in Japan for
generations yet remain “foreigners” by law, routinely encounter discrimination in
employment and education. When they sue, their claims are not framed in the language
of race, but of nationality.
Latin, 1 African-American, 2 and European-American3 foreigners, on the other hand,
experience more overt forms of discrimination: ejection from a store, denial of entrance
into a store, rejection on a housing application, being shooed away. These acts clash with
notions of fundamental fairness that westerners expect in society. For the westerner, the
lawsuit is the preferred method of restoring persons injured by such behavior.
The challenge for Bortz was where to find relevant law. The Japanese Constitution
prohibits discrimination based on race, but only for its own citizens. Bortz’s lawyer had
the vision to invoke the U.N. Convention to End All Forms of Racial Discrimination
(CERD), which Japan signed in 1996. Judge Soh Tetsuro likewise exhibited creativity in
applying international law domestically, via tort law, to fashion a modest, but
unprecedented, remedy for Bortz.

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Seattle: Pacific Rim Law & Policy Journal, University of Washington School of Law